The USA Patriot Act and the Enhanced Border Security and Visa Ent

Global Business & Development Law Journal1-1-2002 The USA Patriot Act and the Enhanced Border Security and Visa Entry Reform Act: Negatively Impacting Academic Institutions by Deterring

Global Business & Development Law Journal

1-1-2002

The USA Patriot Act and the Enhanced Border

Security and Visa Entry Reform Act: Negatively

Impacting Academic Institutions by Deterring

Foreign Students from Studying in the United

States

Adrian Arroyo

University of the Pacific, McGeorge School of Law

This Comments is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons It has been accepted for inclusion

in Global Business & Development Law Journal by an authorized editor of Scholarly Commons For more information, please contact

mgibney@pacific.edu

Recommended Citation

Adrian Arroyo, The USA Patriot Act and the Enhanced Border Security and Visa Entry Reform Act: Negatively Impacting Academic

Institutions by Deterring Foreign Students from Studying in the United States, 16 Transnat'l Law 411 (2002).

Available at: https://scholarlycommons.pacific.edu/globe/vol16/iss2/7

The USA PATRIOT Act and the Enhanced Border Security and Visa Entry Reform Act: Negatively Impacting

Academic Institutions by Deterring Foreign Students

from Studying in the United States

Adrian Arroyo*

TABLE OF CONTENTS

I INTRO D U CTIO N 4 12

II NON-IMMIGRANT STUDENT VISAS AND REFORM 415

A Background: The Congressional Response to Deficiencies in the Student Visa P rogram 418

B The USA PATRIOTAct of 2001 420

1 Federal Privacy Rights of Foreign Students 421

2 The Student and Exchange Visitor Information Program (SEVIS) 423

C The Enhanced Border Security and Visa Entry Reform Act of 2001 425

III MAJOR CRITICISMS OF THE USA PATRIOT ACT AND THE ENHANCED BORDER SECURITY AND VISA ENTRY REFORM ACT OF 2001 426

A The Clash Between Student Privacy and National Security 426

B Complying with the SEVIS Requirements: Too Much to Ask of U S U niversities? 428

1 Delays in the Application Process 428

2 Expenses for Universities 429

C The Impact on Graduate Programs in the United States 430

IV PROPOSED SOLUTIONS 433

A The Cornell Approach 434

B NAFSA Recomm endations 435

V C O N CLU SIO N 437

* J.D., University of the Pacific, McGeorge School of Law, to be conferred May, 2004; B.A., English,

B.S Psychology, Santa Clara University, 2001.

2003 / USA PATRIOT Act and Enhanced Border Security Act

International exchanges are not a great tide to sweep away all differences, but they will slowly wear away at the obstacles to peace as surely as water wears away a hard stone.

-George W Bush, President of the United States'

I INTRODUCTION

The United States has become the host to an increasing number of foreignstudents during the second half of the Twentieth Century.2 Traditionally, theUnited States has maintained a very liberal stance toward foreigners This is

especially true of foreign students because of their contributions to the U.S.

economy.3 The open door immigration policy has many advantages, including

fostering diversity in U.S educational institutions and supplying the U.S.

economy with qualified workers.4 One of the most significant justifications for

the liberal U.S immigration policy is the promotion of knowledge and

understanding of foreign cultures to forge ties with future leaders abroad throughinternational education programs.5 However, terrorists began to take advantage ofthe United States' desire to cultivate international educational programs

Terrorists used the liberal U.S immigration policy to enter the United States and

6

launch an internal attack As a result, Congress began taking measures tostrengthen the shortcomings of the student visa program in an effort to combatterrorism and heighten homeland security.7

I George W Bush, The U.S Presidents on Fulbright and International Exchange Programs, NAFSA:

ASSOCIATION OF INTERNATIONAL EDUCATORS (1989), available at http://www.nafsa.org/content/About

InternationalEducational/Resources/Presidents.htm (last visited Jan 28, 2003) (copy on file with The

Transnational Lawyer) (compiling a variety of quotations from former U.S Presidents regarding the positive

impact foreign scholars and student exchange programs have on the United States); see also The Institute of International Education, The Fulbright Graduate Student Program, available at http://www.iie.org/ Template.cfm?&Template=/programs/fulbright/fulbfor.htm (last visited Feb 18, 2003) (copy on file with The

Transnational Lawyer) (stating that in 1946, at the end of World War II, the Fulbright Program was created to

increase mutual understanding between citizens of the United States and foreign countries Id The program

awards grants to foreign national students, teachers, professors, and professionals so they can study, teach,

lecture, and conduct research in the United States Id It also provides funds for U.S nationals to do the same in other countries Id.

2 James H Johnson, Jr., U.S Immigration Reform, Homeland Security, and Global Economic

Competitiveness in the Aftermath of the September /1, 2001 Terrorist Attacks, 27 N.C J INT'L L & COM REG 419,

422 (2002) (providing an overview of U.S immigration policy).

3 See id at 427 (noting the number of non-immigrations allowed into the country increased from 11.7

million in 1981 to 31.5 million in 1999).

4 See id at 436 (explaining that 12% of the U.S workforce was not bom in the United States).

Additionally, intemational students or children of immigrants account for almost all of the increased enrollment in

the physical sciences, math, and engineering programs at the graduate and post graduate levels of education Id.

5 Diana Jean Schemo, A Nation Challenged: Immigration; The Students Eager for Foreign Students,

Universities Drop Plan to Limit Visas, N.Y TIMES, Nov 18,2001, at A I [hereinafter Schemo, A Nation Challenged].

6 Johnson, supra note 2, at 419-20 (claiming that the culmination of the 1993 World Trade Center

bombing and the September 1I, 2001 terrorist attacks resulted in increased constraints on immigration).

7 See id (noting these reforms in immigration law have significantly encumbered the flow of capital,

people, goods, and services into the United States).

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The first reform in the U.S student visa program occurred after it wasdiscovered that one member of the terrorist group responsible for the 1993 WorldTrade Center bombing' entered the country on a student visa without everenrolling in school Congress amended the immigration laws to require theImmigration and Naturalization Services ("INS") to track all internationalstudents.9 This tracking system would have allowed the INS to monitor allforeign students in the United States and any changes in their visa status in order

to help curtail the problem of so many students overstaying their visas.'0

Although the amendment was codified in the Illegal Immigration Reform andResponsibility Act ("IIRIRA")," the Act was never implemented or enforced.Unfortunately, the problems resulting from the inability to track foreign studentsafter they enter the United States were highlighted once again when one of theSeptember 11, 2001 hijackers was found to be in the United States on a student

expanding the IIRIRA As a result, the INS developed the Student and ExchangeVisitor Information System ("SEVIS"), an electronic database useful inimplementing the provisions of the USA PATRIOT Act.5 In addition to the USAPATRIOT Act, Congress passed the Enhanced Border Security and Visa EntryReform Act ("Border Security Bill"), further strengthening the foreign studentmonitoring program by requiring universities and foreign students to reportadditional information.6

8 Dave Williams, The Bombing of the World Trade Center in New York City, INTERPOL (1998),

available at http://www.interpol.int/public/publications/icpr/icpr469-3.asp (last visited Feb 22, 2003) (copy on

file with The Transnational Lawyer) (providing an overview of the 1993 World Trade Center bombing) On February 26, 1993, at about 12:18 p.m., a bomb exploded on the second floor of the World Trade Center in New York City Id Six people died and more than one thousand were injured Id Five foreigners were found guilty for what was considered the most significant terrorist attack on the United States to date Id.

9 Johnson, supra note 2, at 441.

10 Michael Hedges, Delays Hurt Foreign Student Tracking, HOUS CHRON., Oct 7, 2001, at 16A (explaining that because the tracking system would have included data on the students' addresses in both the United States and their home country, a list of enrolled classes, and faculty advisors, the system would have allowed the INS to identify patterns of education by nationality, region, or origin) In addition, the information would have allowed the INS to identify students who overstayed their visas Id.

11 Illegal Immigration Reform and Responsibility Act of 1996, Pub L No 104-208, 110 Stat 546.

3009-12 Johnson, supra note 2, at 441 (explaining that the tracking system was developed and pilot tested in

1997, but it was never implemented due to a concern that it would stigmatize foreign students).

13 See id at 438 (explaining that one of the hijackers, Hani Hanjour, entered the United States on a student visa but never enrolled in school) In addition, several other September 1 th hijackers overstayed their visas and became illegal immigrants Id Prior to the attacks, the United States did not have any system to monitor whether or not foreign students left the United States when their visas expired Id at 440-41.

14 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub L No 107-56, 115 Stat 272 (codified as amended in scattered sections of 18 U.S.C., 22 U.S.C., 31 U.S.C., 42 U.S.C., 50 U.S.C.).

15 Press Release, U.S Dep't of Justice, Final Rule for Student and Exchange Visitor Information System Announced (Dec 11, 2002), available at http://www.ins.gov.graphics/publicaffairs/newrels/02.12final

rul-nr.htm (copy on file with The Transnational Lawyer).

16 Enhanced Border Security and Visa Entry Reform Act of 2001, Pub L No 107-173 (amending 8 U.S.C § 1372).

2003 / USA PATRIOT Act and Enhanced Border Security Act

The USA PATRIOT Act and the Border Security Bill are designed to strengthen U.S borders, secure the visa entry system, and enhance the ability to

track potential terrorists.7 The USA PATRIOT Act and the Border Security Bill will achieve these objectives by tightening the requirements for obtaining a

student visa, cracking down on foreigners who overstay their visas, broadeningthe power of law enforcement to pursue terrorism, and heightening the reportingrequirements for both students and universities admitting foreign students."Although the objectives behind the foreign student monitoring system are

commendable, SEVIS, the computerized system designed to track foreign

students, has been met with criticisms from both university officials and foreign

students 19

Unfortunately, the criticisms of SEVIS are not unfounded The increased

burden on universities and foreign students to comply with the foreign studentmonitoring program will likely have substantial economic implications forengineering and science graduate programs in the United States because asignificant number of students enrolled in these programs are from foreigncountries."' In addition, many foreign students apply for temporary work visas inorder to remain in the United States and work in the science and engineering

fields after graduation.' Consequently, the USA PATRIOT Act and the Border Security Bill may affect the U.S economy in these areas because their impacts

will lead to fewer foreign students entering the country.2 In turn, this will

17 See NAFSA: Association of International Educators, The Enhanced Border Security and Visa Entry Reform Act of 2001: Summary, available at http://www.nafsa.org/content/publicpolicy/nafsaontheissues/kennedy feinsteinsummary.htm (last visited Nov 16, 2002) [hereinafter NAFSA: Summary] (copy on file with The Transnational Lawyer) (providing an overview of how the legislation will help further these objectives).

18 See Johnson, supra note 2, at 449-50 (adding that the USA PATRIOT Act also establishes a foreign terrorist tracking taskforce, triples border control and customs presence along the Canadian border, works with Mexico and Canada to prevent terrorists from entering at the borders, and delays efforts to ease immigration regulations for Mexican immigrants).

19 See NAFSA: Association of International Educators, International Educator Group Recommends Steps to Improve U.S Visa Screening Process, Nov 14, 2002, available at http://www.nafsa.org/content/

whatsnew/PressReleases/visaproc Ill 402.htm [hereinafter NAFSA: International Educator Group] (copy on file with The Transnational Lawyer) (presenting the concerns voiced by foreign student advisors over the impact of delays in approving visa applications) These delays have resulted in students and foreign faculty members missing program start dates, slowing scientific research, and losing potential foreign students and scholars who have chosen to go to other countries Id.; see also Elizabeth Dunbar, Foreign Students at U Minnesota Find Difficulty in Getting Visas, MINN DAILY, Sept 16, 2002, available at http://www.mndaily com/article.php?id=264&year=-2002 (copy on file with The Transnational Lawyer) (discussing that foreign students may go to other countries to study because of the increased scrutiny the foreign student monitoring system places on them Id.

20 See Mark Krikorian, Are Foreign Students Good for America? Panel Discussion Transcript,

CENTER FOR IMMIGR STUD., June 25, 2002, available at http://www.cis.org/articles/2002/foreignstudents.html (copy on file with The Transnational Lawyer) (citing panelist George Borjas as stating that foreign students receive 35% of all Ph.D.s in the physical sciences, 49% in engineering, and 23% in the social sciences).

21 Mario Cervantes & Dominique Guellec, The Brain Drain: Old Myths, New Realities, OECD

OBSERVER, Jan I, 2002, available at 2002 WL 100075034 (noting that 25% of the specialty workers in the high-tech work force were enrolled as foreign students at U.S universities).

22 See infra notes 157-63 and accompanying text (presenting a discussion of how fewer foreign students studying in the United States will cause a decrease in the available number of high-tech foreign workers).

The Transnational Lawyer/ Vol 16

diminish the number of qualified workers available to fill positions traditionallyoccupied by foreign students choosing to remain in the United States aftergraduation

This Comment illustrates how the USA PATRIOT Act and the BorderSecurity Bill will negatively impact graduate institutions by decreasing thenumber of foreign students wanting to study in the United States and increasingthe cost for institutions that enroll foreign students Part II provides an overview

of immigration law and discusses recent changes in the law as a result of theUSA PATRIOT Act and the Border Security Bill Part III presents the majorcriticisms of the USA PATRIOT Act and the Border Security Bill in relation toforeign students and universities These criticisms include concerns aboutamending foreign students' federal privacy rights, substantial delays in theapproval of student visa applications, and the high costs associated withimplementing SEVIS.26 Part IV proposes solutions to combat these problemswhile preserving the goals of the foreign student monitoring system.2 7 ThisComment reaches the conclusion that the negative impact the USA PATRIOTAct and the Border Security Bill may have on graduate institutions and the U.S.economy is substantially outweighed by the fact that these Acts will help preventfuture terrorism directed at the United States.28 Thus, Congress should continue toimplement of the USA PATRIOT Act and the Border Security Bill in addition toadopting the solutions proposed in Part IV of this Comment in order to limit thenegative impact on foreign students and universities

II NON-IMMIGRANT STUDENT VISAS AND REFORM

In order to understand the changes in immigration law brought about byCongressional efforts to remedy discrepancies in the student visa system, a basicunderstanding of the requirements to issue this visa is necessary.29 First, foreignstudents must be accepted to a U.S school approved by the INS.0 Applicants

23 See infra notes 157-63 and accompanying text (explaining how the USA PATRIOT Act and the Border Security Bill will impact the U.S economy).

24 See infra notes 29-120 and accompanying text (providing an in-depth examination of the changes in U.S immigration policy brought on by the USA PATRIOT Act and the Border Security Bill).

25 See infra notes 121-72 and accompanying text (describing how the USA PATRIOT Act and the Border Security Bill will impact foreign students and graduate programs in the United States).

26 See infra notes 121-72 and accompanying text (providing a discussion of the major criticisms of the Acts).

27 See infra notes 173-88 and accompanying text (offering several ways to make the implementation of the foreign student monitoring system easier on both foreign students and universities).

28 See infra notes 189-93 and accompanying text (asserting that even though implementing these acts will be difficult, the goals of strengthening national security and preventing terrorism are paramount to the burden on academic institutions).

29 Michael Maggio et al., Immigration Fundamentals for International Lawyers, 13 AM U INT'L L.

REV 857, 868-69 (1998) The INS only issues two types of visas: non-immigrant and immigrant visas Id.

Student visas and temporary work visas are types of non-immigrant visas Id Non-immigrant visas are only

given to applicants who can prove that they will return to their home country after the visa has expired Id.

30 U.S.A Immigration Services, US Student Visas-Apply for Temporary Residence in the U.S Through a Student Visa, available at http://www.usais.org/studentvisas.html (last visited Oct 7, 2002) (copy on

2003 / USA PATRIOTAct and Enhanced Border Security Act

must also be proficient in English or enrolled in courses that will lead toproficiency." In addition, students must prove that they have sufficient fundsavailable for self-support while in the United States and that they will returnhome after completing their course of study in the United States." Once approvedfor a student visa, students must attend school full time and maintain a residence

abroad.33

The requirements for obtaining a visa to work in the science or engineeringfields are also quite stringent 4 Temporary work visas are available to foreignersalready in the United States on other non-immigrant visas, including a studentvisa.35 For example, a student can apply for a temporary work visa if the studentwants to remain in the United States to work after the expiration of his studentvisa.36 However, regardless of whether the foreign citizen is applying for the

temporary work visa prior to or during U.S residency, the applicant must meet several requirements First, the applicant must obtain a U.S university degree or

its equivalent.37 Second, the applicant must have a job offer in the United States

that relates to thus degree or equivalency.38 Next, the offered job position must

require at least a university degree, and the offered wages must be the greater of

file with The Transnational Lawyer) (listing the requirements for becoming a foreign academic student in the

United States).

31 Id.

32 Id.; see also Maggio, et al., supra note 29, at 869 (noting that a primary reason applicants are denied

a non-immigrant visa is lack of money; if applicants do not have sufficient funds, they will not be able to return

home Id Because of this requirement, if the INS has any concern about the applicant remaining illegally in the United States after the term of the visa has expired, it will refuse to issue the non-immigrant visa Id.

[M]any consuls employ the three suit rule [w]hen you apply for a visa you must present a photograph you also, in most countries must appear at the consulate in person If the man standing before the consul has a different suit in the visa application photograph and a third suit in the passport, he's got three suits, and that means he's got the one word that means that you will be issued a non-immigrant visa, "money."

Id Consequently, the financial situation of a foreign student applying for a student visa has a tremendous

impact on whether the student will be approved for a student visa Id.

33 See Johnson, supra note 2, at 440 (commenting that students must attend school full time because they, are not allowed to work while in the United States on a student visa); see also U.S.A Immigration Services, supra note 30, available at http://www.usais.org/studentvisas.html (noting that the student must be

enrolled full time at a university in order to meet the requirements for a student visa).

34 See Maggio, et al., supra note 29, at 881 (defining the terms of the H visa for the business

immigration practitioner).

35 See Dunbar, supra note 19, available at http://www.mndaily.com/article.php?id=264&year=-2002

(describing how the timeline for students to make a change to their visa has increased from a few weeks to four months in the aftermath of September 11, 2001).

36 See Maggio, et al., supra note 29, at 874 (explaining that the process is called a "change of status").

The "change of status" allows non-immigrants an opportunity to obtain a different non-immigrant visa while

still in the United States in order to avoid penalties for overstaying the terms of their original visa Id.

37 Id at 881-84 (defining what is meant by the term "equivalent") If an applicant has a degree from a

four or five year foreign university, that degree will probably be considered equivalent to a U.S university

bachelor degree Id In other circumstances, professional work experience in a specialty field will also be

considered equivalent Id Credentials evaluation services review the applicant's credentials and determine

whether the applicant's foreign degree or work experience are similar enough to a U.S university education to

be equivalent Id.

38 Id at 881.

The Transnational Lawyer/ Vol 16

either the prevailing wage in the area where the position is located or the actualwage paid to others with similar jobs in the company 9 Finally, the foreignworker must not bring down other wages in the area as a result of taking theoffered position.40 Therefore, simply having a job offer in the United States isinsufficient to obtain a temporary work visa

The screening process that determines whether an applicant meets therequirements for obtaining and maintaining a visa has historically been very lax.Typically, young, inexperienced, and overworked visa officers in overseasoffices are only permitted two or three minutes to interview each applicant andare often pressured to approve a high percentage of applications for fear ofoffending the host country.4' However, the requirements for obtaining atemporary work visa are more stringent than for a student visa, thus making itmore difficult to obtain As a result, the student visa system is abused morefrequently by foreigners who enter the United States with a student visa yet neverenroll in school.43

Student visas are very attractive to young, unmarried male terrorists trying toenter the United States These individuals would probably be denied a tourist visabecause their motivation for entering the United States would be questionable

In order to qualify for a tourist visa, the foreigner must overcome a presumptionthat they are intending to permanently remain in the United States.45 To rebut thispresumption, the applicant must prove that the purpose of the trip is for business,pleasure, or medical treatment.46 The applicant must also indicate plans to remain

in the United States for only a limited time and the existence of a foreignresidence abroad to which the applicant will return after visiting the UnitedStates 47 Therefore, it is easier to comply with the requirements for obtaining a

39 Id at 882 (explaining that the actual wage is the wage paid by the employer to other individuals with similar experience and qualifications) There are several ways to determine the prevailing wage and the actual wage id The prevailing wage may be computed by the State Employment Security Agency (SESA) with a written request from the potential employer or by a published wage survey that includes the specific specialty occupation 20 C.F.R § 655.731 (b)(3)(iii)(B) (2001).

40 Maggio, et al., supra note 29, at 882 (declaring that legislation codifying this requirement was enacted several years ago) It was designed to ensure that the employment of foreign workers will not harm American workers or undercut their wages, as foreign workers are typically willing to work for reduced wages.

Id.; see also Lenni Benson, Breaking Bureaucratic Borders: A Necessary Step Toward Immigration Law

Reform, 54 ADMIN L REV 203, 227 (2002) (indicating that it is necessary to place the burden on the U.S.

employer to qualify each position separately before the company can employ foreign labor).

41 Johnson, supra note 2, at 439.

42 See Mark Krikorian & Steven Camarota, How Did the Terrorists Get in?, S.F CHRON., Sept 19,

2001, at A19 (suggesting that determining whether to grant non-immigrant visas should be a position that

Foreign Service officers actually sign up for rather than a "dreaded rite of passage" for inexperienced officers).

43 Andrew Mollison, Student Visas Don't Track Terrorists, ATLANTA J & CONST., Nov 1, 2001, at

A13 (explaining that 3761 students from countries that are considered sponsors of terrorism entered the United

States with a student visa in 2000).

44 Krikorian, supra note 20, available at http://www.cis.org/articles/2002/foreignstudents.html.

45 INS, Business or Pleasure Visitors, available at http://www.ins.gov/graphics/services/tempbenefits/

BusPleasure.htm (last visited Feb 23, 2003) (copy on file with The Transnational Lawyer).

46 Id.

47 Id.

2003 / USA PATRIOT Act and Enhanced Border Security Act

student visa because there is no presumption for the applicant to overcome Once

a potential terrorist is able to enter the United States on a student visa, he has agood chance of finding a wife and obtaining a green card 4 A green card is very

attractive to terrorists because it allows more freedom once in the United States.49Historically, there has been no system in place to monitor whether foreignstudents actually comply with visa requirements once in the United States The

INS was aware of the problems in the student visa system prior to September 11,

2001, but nothing was done to eliminate them." The first evidence of a problem

in the student visa system was discovered in the 1970s when terrorists seized the

U.S Embassy in Tehran52 and the INS was unable to determine how many

Iranian students were in America at the time.3 However, Congress did not enactmeasures to help monitor foreigners in the United States until it was discovered

that one of the terrorists who bombed the World Trade Center in 1993 was in the

United States on a student visa and his affiliation with terrorist organizationswent undetected This time Congress took action to implement a foreign student

monitoring system by enacting the IIRIRA 5

A Background: Congressional Response to Deficiencies in the Student Visa Program

Almost thirty years after identifying the deficiencies in tracking foreign

students within the United States, Congress passed a law requiring the INS to

48 Krikorian, supra note 20, available at http://www.cis.org/articles/2002/foreignstudents.html.

49 Id A green card allows for the holder to travel freely throughout the country Id It signifies permanent resident status Maggio, et al., supra note 29, at 876.

50 James V Grimaldi et al., Losing Track of Illegal Immigrants, WASH POST, Oct 7, 2001, at Al

(arguing that the INS does not have a system to track over a half million foreign students in the United States, even though these students have been considered a security risk for 20 years).

51 Johnson, supra note 2, at 438 (explaining that the flaws in the student visa system were not corrected

due to either successful lobbying efforts or simply because Congress did not take any action as a result of international pressure).

52 See Iran to Open Former U.S Embassy to Public, PEOPLE'S DAILY, Sept 3, 2001, available at

http://english.peopledaily.com.cn/200109/03/eng200l0903-79145.html (copy on file with The Transnational

Lawyer) (recounting that on November 4, 1979, several hundred radical Islamic students climbed over the

embassy's walls and held staff members hostage for 444 days) The event severed Tehran-Washington ties and

led the United States to sanction the Islamic Republic Id.; see also Hedges, supra note 10 (explaining that the

INS was unable to provide a list of Iranian students who were still in the United States on student visas when the Embassy was seized in Tehran, Iran).

53 Johnson, supra note 2, at 441.

54 See Krikorian & Camarota, supra note 42 (noting that Congress responded to the failure to track

foreign students after learning that the driver of the van carrying the explosives involved in the first World Trade Center bombing entered the United States on a student visa and then breached the terms of his visa by dropping out of school).

55 Fact Sheet, INS, Student Exchange and Visitor Information System (SEVIS): Final Rule

Implementing SEVIS (Dec 11, 2002), at http://www.immigration.gov/graphics/publicaffairs/factsheets/02.12

FINALRUFS.htm (copy on file with The Transnational Lawyer); see also NAFSA: Association of International Educators, Issue Brief: International Student Monitoring (Jan 2002), available at http://www.

nafsa.org/content/publicpolicy/waf3a-on-the issues/monitoring.html (last visited Jan 23, 2003) [hereinafter

NAFSA: Issue Brief] (copy on file with The Transnational Lawyer).

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16

establish a system to monitor foreign students The IIRIRA required the INS toimplement this tracking system by 2003." 7 The system was pilot tested in 1997,but as a result of lobbying efforts by the International Association of Educators,the system was never enforced.58 Because the plan required international studentsattending American universities to pay a ninety-five dollar fee to finance thesystem, 9 lobbyists successfully argued that the plan would "stigmatizeinternational students and impose an undue financial burden on them."'Accordingly, the problems with the foreign student visa program resulting fromthe inability to track foreign students continued

The September 11, 2001 attacks on the United States once again illustratedthe need for a tracking system to monitor foreign students One of the terroristsinvolved, Hani Hanjour, entered the United States with a student visa, yet henever enrolled in school, and wandered undetected throughout the United

61

States In response to learning this information, Congress enacted legislation tosolve the deficiencies in the U.S foreign student visa program and immigrationpolicy.62 Specifically, the USA PATRIOT Act63 reinstated the tracking systemestablished in the IIRIRA.6 Under section 641 of the IIRIRA, the INS is required

to collect current information from schools relating to non-immigrant foreignstudents during the course of their stay in the United States SEVIS implementsthis section by allowing the INS to monitor foreign students using a computerdatabase that maintains current information on each student.66 Through SEVIS,the INS will be able to ensure that foreign students arrive in the United States,enroll and attend classes at a university, and properly maintain their legal statuswhile in the country." The Border Security Bill6 further strengthens and clarifies

56 Johnson, supra note 2, at 441.

57 NAFSA: Issue Brief, supra note 55, available at http://www.nafsa.org/contentlpublicpolicy/waf3a_

ontheissues/monitoring.html.

58 Johnson, supra note 2, at 441.

59 Hedges, supra note 10.

60 See Johnson, supra note 2, at 441 (explaining why the student tracking system was never enforced).

61 Id at 440-41 (suggesting Hanjour was "able to remain in the United States even though he never

enrolled in the California school to study English because the INS had no system in place to monitor and track him after he entered the United States").

62 House Science Committee Explores Restrictions on International Students and Faculty, 79 No 43

INTERPRETER RELEASES 1641 (2002) (explaining that the USA PATRIOT Act and the Border Security Bill strengthened the IIRIRA).

63 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub L No 107-56, 115 Stat 272 (codified as amended in scattered sections of 18 U.S.C., 22 U.S.C., 31 U.S.C., 42 U.S.C., 50 U.S.C.).

64 Illegal Immigration Reform and Responsibility Act of 1996, Pub L No 104-208, 110 Stat 546.

3009-65 Press Release, supra note 15, available at http://www.ins.gov.graphics/publicaffairs/newrels/02.12

finalrulnr.htm.

66 Id.

67 Id (describing how SEVIS will help track foreign students).

68 Enhanced Border Security and Visa Entry Reform Act of 2001, Pub L No 107-173 (amending 8 U.S.C § 1372).

2003 / USA PATRIOT Act and Enhanced Border Security Act

the foreign student monitoring program by requiring each university to report the

failure of a foreign student to enroll in classes within thirty days of theregistration deadline and adding reporting requirements for foreign applicantstrying to obtain a student visa.9

It is increasingly difficult for law enforcement officials to effectively trackforeigners once they are in the United States because so many of them enter thecountry on non-immigrant visas.7° Consequently, it has remained relatively easyfor terrorists to enter the United States and remain undetected, despite notcomplying with the terms of their visas." The foreign student monitoring system,

reinstated by the USA PATRIOT Act and the Border Security Bill, may be one

of the solutions to the problem of tracking foreigners

B The USA PATRIOTAct of 2001

Less than six weeks after the terrorist attacks of September 11, 2001, the

72

USA PATRIOT Act was signed into law The legislation tightened laws on

student visas, imposed stricter penalties on those who overstay their visas, andgranted the federal government additional wiretapping and surveillanceauthority.73 Although the USA PATRIOT Act affects many institutions, the Act's

impact on American academic institutions is important for two reasons First, the

Act affects the federal privacy rights of foreign students by allowing the

government greater access to private student information and activities thatwould otherwise be available to law enforcement only with student consent.74

Second, the Act impacts universities by requiring that they report additional data

69 Press Release, supra note 15, available at http://www.ins.gov.graphics/publicaffairs/newrels/02.12

finalrulnr.htm.

70 See Symposium, Immigration in the Post 9-11 Era, 40 BRANDIES L.J 851, 854 (2002) (explaining

why the fight against terrorism should be focused on preventing it before terrorists enter the country); see also Johnson, supra note 2, at 427 (noting that the number of non-immigrants increased from 11.7 million in 1981 to

31.5 million in 1999).

71 Johnson, supra note 2, at 448-49 (suggesting that a lack of a foreign student monitoring system may

not have been the only flaw in U.S immigration policy) Evidence from the September 11, 2001 attacks

indicates that there were severe weaknesses in the national security and intelligence infrastructure Id In other

instances, federal agencies failed to share intelligence information about potential terrorists with each other Id.

For example, two of the September 2001 hijackers were on the FBI's list of suspected terrorists, but still were able to obtain a pilot's license and a commercial driver's license that permitted the transportation of hazardous

material Id Finally, federal agencies did not act on warnings from reliable sources about the terrorist attacks.

Id Flight schools in Minnesota and Arizona reported suspicious behavior of several students to the appropriate

federal agencies, but the agencies did not take the warnings seriously Id Specifically, when the Arizona flight

school reported that one of its students did not meet the enrollment requirement of speaking English, the Federal

Aviation Administration recommended that they get him a tutor Id.

72 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub L No 107-56, 115 Stat 272 (codified as amended in scattered sections of 18 U.S.C., 22 U.S.C., 31 U.S.C., 42 U.S.C., 50 U.S.C.).

73 See Johnson, supra note 2, at 449-50 (detailing the provisions of the USA PATRIOT Act).

74 See infra notes 76-88 and accompanying text (describing how student privacy rights are affected by

the USA PATRIOT Act).

The Transnational Lawyer / Vol 16

on foreign students to the INS through SEVIS.75 The effect of the Act on thenumber of foreign students attending U.S graduate institutions is particularlyrelevant because it may have a negative impact on enrollment It is possible thatstudents will be deterred from entering the United States because a wider variety

of private student information can now be revealed to law enforcement withoutthe student's consent

1 Federal Privacy Rights of Foreign Students

The federal privacy rights of foreign students are altered with theimplementation of the USA PATRIOT Act.76 Prior to the enactment of the USAPATRIOT Act, the National Education Statistics Act required the federalgovernment to collect identifiable student information such as grades, courses,family information, and medical records.77 However, in accordance with theFamily Education Records and Privacy Act,78 educational records were held instrict confidence and could only be accessed with student consent in order toprotect student privacy.7 9 The USA PATRIOT Act amends the Family EducationRecords and Privacy Act to allow law enforcement agencies to access thisinformation by certifying that it is relevant to an authorized investigation orprosecution.' The USA PATRIOT Act does not require the consent of thestudent being investigated nor does it permit judicial review to determinewhether allowing law enforcement officials access to the information will harmthe student.8'

The USA PATRIOT Act also affects students' privacy by increasing thefederal government's authority to wiretap and seize digital and telephone• • 82

engaging in computer fraud or abuse in order to commit terrorist activities, law

75 See infra notes 89-107 and accompanying text (explaining how SEVIS will aid the INS in

monitoring foreign students).

76 USA PATRIOT Act § 507.

77 H Peter Del Bianco, Jr & F Mark Terison, Is Big Brother Watching Out for Us?, 17 ME B.J 20,

26 (2002); see also Seth Rosenfield, Looking Back, Looking Ahead: A Nation Remembers Patriot Act's Scope,

Secrecy Ensnare Innocent, Critics Say, S.F CHRON., Sept 8, 2002, available at http://sfgate.com/cgi-bin/ article.cgi?file=/chronicle.archive/2002/09/08/MN30478.DTL (copy on file with The Transnational Lawyer)

(explaining how the USA PATRIOT Act altered the rights of foreign students).

78 20 U.S.C § 1232g(j)(3) (1974), amended by USA PATRIOT Act; see also U.S Dep't of Education,

Family Education Rights and Privacy Act (FERPA), available at http://www.pd.gov/offices/om/fpcol/ferpal

(last visited Mar 22, 2003) (copy on file with The Transnational Lawyer).

79 Rosenfield, supra note 77, available at http://sfgate.com/cgi-bin/article.cgi?file=/chronicle.archive/

2002/09/08/MN30478.DTL.

80 Id at 27; see also USA PATRIOT Act § 507 (codified at 20 U.S.C § 1232g(j) (2001)).

81 USA PATRIOT Act § 507; see also Jon Garon, The Electronic Jungle: The Application of

Intellectual Property Law to Distance Education, 4 VAND J ENT L & PRAC 146, 166-67 (2002) (explaining

that the university is immune from a suit for compliance with the order as long as they disclose the information

in good faith).

82 Garon, supra note 81, at 166.

2003 / USA PATRIOT Act and Enhanced Border Security Act

enforcement authorities can place a wiretap on a student's computer." Inaddition, law enforcement authorities can seize private telephone messages,faxes, e-mails, and other documents as long as they obtain a warrant.4Furthermore, subpoenas may be issued authorizing the seizure of a broader range

of records, including names, connection records, IP addresses, and methods of

payment for Internet service." In addition, the USA PATRIOT Act authorizes voluntary disclosure of information by universities that would be necessary to

protect the rights or property of the university as an Internet service provider.Finally, the university may voluntarily disclose information to law enforcement ifthe information was inadvertently obtained and appears to pertain to thecommission of a crime.86

These provisions of the USA PATRIOT Act will have a significant impact

on academic institutions The Act will likely dissuade foreign students fromcoming to the United States due to decreased privacy rights, leading fewerstudents to enroll in science and engineering programs However, the provisionsconcerning privacy are not the only provisions that academic institutions have toconsider, for the Act also requires universities to computerize their foreign

student records by implementing SEVIS 8 7 SEVIS is the electronic database that will be used by the INS and universities to track and monitor foreign students."

83 Id at 166 (explaining that the USA PATRIOT Act grants federal agents the additional authority to

obtain a wiretap); see also USA PATRIOT Act § 202 (setting forth how authorities can wiretap student computers).

84 Garon, supra note 81, at 166 (noting that in order to seize telephone messages, more stringent wiretap authority was required); see also Rosenfield, supra note 77 (quoting John Podesta, professor at

Georgetown University Law Center, on the possibility that all pay phones in a neighborhood may be tapped if there were suspected terrorists in the area).

85 See Garon, supra note 81, at 166 (asserting that increased access to records allows the federal

government to more readily track student activity on university systems).

86 Id at 166 n.275 This is allowed if the Crime Control Act of 1990 requires disclosure or if the

university reasonably believes that not disclosing the information will result in imminent death or bodily harm.

id Prior to the enactment of the USA PATRIOT Act, the academic institution could operate its network without

infringing on the federal privacy rights of the students Id The institution could disclose electronic records with

the express or implied consent of either the sender or the intended recipient of the communication Id With the increased discretion offered by the Act, "an academic institution could theoretically undertake any investigation

if a staff member [reasonably] thought that he or she needed to protect the institution's rights or property." Id at

167.

87 INS, Student and Exchange Visitor Information System (SEVIS), Dec 11, 2002, available at

http://www.immigration.gov/graphics/publicaffairs/factsheets/02.12FINALRU-FS.htm (last visited Mar 12,

2003) (copy on file with The Transnational Lawyer) (describing how SEVIS implements the IIRIRA and what universities must report to the INS about foreign students).

88 Homeland Security: Tracking International Students in Higher Education-Progress and Issues

Since 9-11: Hearing Before the House Subcomm on 21st Century Competitiveness and the House Subcomm on Select Educ., Comm on Educ and the Workforce, 107th Cong (2002) (statement of Glenn A Fine, Inspector

General, U.S Dep't of Justice), available at http://www.usdoj.gov/oig/testimony/092402.htm (last visited Jan.

30, 2003) [hereinafter Homeland Security Hearing] (copy on file with The Transnational Lawyer) (describing

how SEVIS will help solve many of the tracking problems the INS had with foreign students).

The Transnational Lawyer / Vol 16

2 The Student and Exchange Visitor Information Program (SEVIS)

The INS is responsible for many tasks pertaining to the issuance of student

visas and for monitoring whether or not students comply with the terms of thestudent visa.89 First, the INS is responsible for determining which schools are

eligible to receive foreign students.90 Second, the INS must keep track of when

foreign students enter and exit the country, monitor whether students arecomplying with the terms of their visas while in the country, and facilitate theremoval of foreign students once their visa term ends.9' Historically, the INS has

not handled these responsibilities adequately The INS does not have accurateinformation on which schools are eligible to receive student visas, let alone onhow many foreign students are in the United States or if these students are herelegally?2

SEVIS will help the INS fulfill its responsibilities To illustrate this, a school must fill out a Petition for Approval of School for Attendance by Nonimmigrant Students, the 1-17 form provided by the INS in order to be certified to accept

foreign students.93 The school must operate as a "public educational institution by federal, state, or local government" and must be "accredited by a nationally recognized accrediting agency" in order for the INS to approve the form.9 If the

school is accredited and has accepted the foreign student, the school must issuethe student an 1-20 form containing information about the school and theprospective student.95 The student then takes this form to the local consulate,where the student is interviewed and the application reviewed before the student

is granted a student visa.6 Unfortunately, INS investigators and administrators believe prevalent fraud exists in the use of the 1-20 form 9 7 The forms areparticularly easy to counterfeit because they do not have adequate security

89 Id (explaining the INS duties for issuing students visas).

90 Id.

91 Id.

92 Id (suggesting that the INS does not have detailed or accurate information about foreign students in

the United States).

93 See House Immigration Subcommittee Reviews SEVIS Implementation; Other Activity, 79 No 37

IrERPRErER RELEASES 1424 (2002) (noting that as of September 17, 2002, over 2000 schools were in various

accredited); see also Homeland Security Hearing, supra note 88, available at http://www.usdoj.gov/oig/

testimony/092402.htm (describing past INS procedures for ensuring that schools are properly certified to enroll

foreign students) The INS inspectors who are in charge of approving and re-certifying schools are typically not

very thorough in their review of the school application, and they rarely visit the school before or after approval.

Id.

95 Homeland Security Hearing, supra note 88, available at http://www.usdoj.gov/oig/testimony/092

402.htm.

96 See Krikorian, supra note 20, available at http://www.cis.org/articles/2002/foreignstudents.html.

97 Homeland Security Hearing, supra note 88, available at http://www.usdoj.gov/oig/testimony/

092402.htm (describing the problems with the current process of tracking 1-20 forms).